Virginia GOP Pulls Dirty Trick That Violates The State’s Constitution

Dear Virginia Republicans: When you shoot at a king, you must kill him. And when you opt to attempt a colossally arrogant and slimy stunt, you’d better make sure in advance that it will work.

Yesterday, on a public holiday, while a member of the Democratic caucus of the Virginia Senate (currently split 20-20) was attending the inauguration in DC, the Republican caucus decided to launch a dirty trick (h/t to Lowkell at Blue Virginia):

You don’t get more slimy, sneaky, underhanded, etc. than this (great work by Ben Tribbett alerting us to what was going on in the following series of Facebook updates):
“Wow- Republicans in the Virginia Senate are now trying to redraw the maps and draw at least one Democratic Senator out of the Senate. Happening right now on the floor.”

“COUP GOING ON IN VIRGINIA SENATE: Republicans have just brought all new Senate districts to the floor with Henry Marsh gone in DC, now 30 minutes of debate before they send them to the House of Delegates.”

“COUP SUCCESSFUL- NEW DISTRICTS HEADED TO VIRGINIA HOUSE. AT LEAST ONE DEMOCRATIC SENATOR TO BE OUSTED.”

After Ben’s first Facebook notice, I went to the live feed of the Virginia State Senate and watched as Sen. Saslaw, Sen. McEachin (“This is sneaky, this is underhanded, and it’s beneath the dignity of the Senate“), Sen. Marsden and Sen. Barker went ape**** on the Republicans for what they said was a totally underhanded, unconstitutional move that will utterly poison relations in the Virginia State Senate. The fact that Republicans pulled this underhanded maneuver while most people were focused on the inauguration and Democratic State Senator Marsh was out of town (for the inauguration) really says it all. Wow.

Once it passes the GOP-controlled House of Delegates, and assuming it gets signed by the Republican governor, Bob McDonnell, the Republicans’ attempt at gerrymandering would give them a potential 27-13 supermajority in the Senate — that’s how extreme it is. And normally, you’d expect somebody as partisan in his Republicanness as Virginia’s governor to welcome the bill with open arms. But so far, that’s not been happening — in fact, the governor and his staff seem to have been caught off-guard by this:

McDonnell’s office is non-committal on the new maps, saying the GOP move came as news to McDonnell as well.

“The Governor was very surprised to learn that a redistricting bill would be voted on by the Senate today,” Tucker Martin, a spokesperson for McDonnell, told TPM. “He has not seen this legislation. If the bill gets to his desk he will review it in great detail at that time as he did with prior redistricting legislation.”

Politically, the move coud derail McDonnell’s ambitious agenda for his last year in office ahead of a rumored run for higher office. Optics-wise, the state Senate GOP’s move could reverberate far beyond the Commonwealth: after using the absence of civil rights leader Marsh to push through the legislative changes, the Senate adjourned in honor of a well-known Confederate general.

“On motion of Senator Stosch, the Senate adjourned in memory or [sic] General Thomas J. ‘Stonewall’ Jackson at 4:10 p.m. to convene Tuesday, January 22, 2013,” read the official minutes of the legislative day.

Heh. Not being warned in advance would have likely ticked off McDonnell even if the coup attempt by his fellow Republicans was well executed, and having to sit and watch as they smear political feces all over themselves makes it doubly bad. Which is why it was no surprise later that evening when Jeff Schapiro, who covers politics for the Richmond Times-Dispatch, tweeted the following:

Jeff E. Schapiro ‏@RTDSchapiro

#rva #vagov Even @BobMcDonnell is steamed over surprise re-redist maneuver by fellow R’s in #Va Senate; worried it threatens his agenda.

Even worse from McDonnell’s viewpoint: Just as Democratic state Senators Marsden and Barker said and a growing number of others are saying, this stupid stunt is unconstitutional. Article II, Section 6 of the Virginia Constitution reads as follows (emphases mine):

Members of the House of Representatives of the United States and members of the Senate and of the House of Delegates of the General Assembly shall be elected from electoral districts established by the General Assembly. Every electoral district shall be composed of contiguous and compact territory and shall be so constituted as to give, as nearly as is practicable, representation in proportion to the population of the district. The General Assembly shall reapportion the Commonwealth into electoral districts in accordance with this section in the year 2011 and every ten years thereafter.

Any such decennial reapportionment law shall take effect immediately and not be subject to the limitations contained in Article IV, Section 13, of this Constitution.

The districts delineated in the decennial reapportionment law shall be implemented for the November general election for the United States House of Representatives, Senate, or House of Delegates, respectively, that is held immediately prior to the expiration of the term being served in the year that the reapportionment law is required to be enacted. A member in office at the time that a decennial redistricting law is enacted shall complete his term of office and shall continue to represent the district from which he was elected for the duration of such term of office so long as he does not move his residence from the district from which he was elected. Any vacancy occurring during such term shall be filled from the same district that elected the member whose vacancy is being filled.

That’s right — the only redistricting allowed by the Virginia constitution, which was rewritten in 2004, is that done every ten years starting in 2011. Since 2011 has come and gone, the next legal chance for redistricting is 2021.

First of all, there’s no such thing as “technical adjustment” redistricting. It’s either redistricting, which this would be, or it isn’t, with actual people moved from one district to another. That means this move by Virginia’s Senate Republicans raises fundamental constitutional issues.

Second, the Virginia constitution clearly says that redistricting will be done in 2011 and every 10 years thereafter. It does NOT authorize redistricting in other years.

Third, the Virginia constitution does not appear to contemplate re-redistricting in other years because it does not address when any such changes would take effect. The constitution defines when “the decennial reapportionment law” takes effect, what district boundaries are to exist until the next elections, and how vacancies would be filled, but it makes no such references regarding re-redistricting in other years.

Fourth, this issue was addressed by a Richmond Circuit Court judge just last year. The judge stated that the language in the constitution limits the authority of the General Assembly to redistrict to 2011 and every ten years thereafter, and does not allow subsequent re-redistricting, which is what this bill would do.

Fifth, the Colorado Supreme Court in late 2003 ruled that a redistricting law passed that year in that state was unconstitutional under a similar provision in the Colorado constitution. That ruling was made even though 1) it could be argued that the Colorado language is more ambiguous than the Virginia Constitution; and 2) it was not a legislative re-redistricting because the Colorado legislature had failed to pass a bill in 2001 or 2002. Because of that, the redistricting had been done by the Court. There was not a single dissent on the Colorado Supreme Court on the issue of whether the legislature could redo its redistricting. Two justices dissented, but their dissent was based on wanting to have a hearing on the issue of whether the legislature should be granted an exception to the prohibition on re-redistricting because the approved plan was developed by the judiciary rather than the legislature.

Sixth, this bill changes the racial and ethnic percentages and the partisan distribution in districts. The changes to the 47 districts may vary, but they nonetheless exist, and could draw tighter Voting Rights Act scrutiny where they are reducing the effective power of African-Americans and others in districts.

Three things are very different:

P.S. Also note that the Virginia constitution was amended in 2004 with substantive changes regarding redistricting, making it very clear when this can be done.